High Noon for Marriage

Jonathan V. Last

March 27, 2013 7:32 AM

Yesterday the Supreme Court heard oral arguments on California’s Proposition 8, which defines marriage as being between couples of the opposite sex. Today they’re hearing them on the Defense of Marriage Act, which defines marriage as a union of one man and one woman at the federal level. Like Roe v. Wade, the high court’s decision on these cases is likely to fuel the culture war for a generation or two, at least. Unlike with Roe, the Court seems to understand that it’s been handed an issue of enormous consequence.

As such, it’s important to understand that one way or another, the entire topography of the gay marriage debate is likely to change once the Court issues its rulings. And it’s anyone’s guess as to what that world is going to look like.

So instead of offering predictions, here are some thoughts to keep in mind in the coming months while we wait for the rulings.

* There’s no reason for opponents of same-sex marriage to get stampeded into abandoning the field. That’s been the purpose of the media blitz over the last few weeks: to convince conservatives (and any jurists who might—*cough* Ron Joberts *cough*— be particularly sensitive to public opinion) that the general sentiment is snowballing in favor of overhauling the traditional definition of marriage.

But is it really? Gay marriage has had a good run since November. Voters in Maine, Washington, and Maryland approved gay marriage initiatives, and voters in Minnesota turned down a proposal to limit marriage to one man and woman—the first time a proposal like that has been defeated. These were real victories for the gay marriage movement. But they were powered in large part by President Obama’s coattails. Look at how the gay marriage initiatives underperformed Obama’s share of the vote in each of the four states:

Strip out Obama’s big margins of victory and every one of those outcomes might have been different. (In an alt-universe where Mitt Romney chose Tim Pawlenty as his running mate, the Minnesota traditional marriage initiative probably would have flipped even if Obama carried all the same states.)

* None of this invalidates the results—wins are wins. But it does highlight two things:

(1) Even in places where gay marriage has had its very best electoral outcomes—ever—it certainly isn’t an overwhelming juggernaut. Fifty-three percent of the vote in ultra-liberal Washington state doesn’t equal settled public opinion. To give you some perspective, in 2008 58 percent of Washington voters supported the state’s assisted suicide initiative. You don’t hear anyone talking about how unstoppable the national assisted-suicide movement is.

(2) Should the defenders of traditional marriage give up just because the four most recent votes didn’t go their way? Imagine another alt-universe in which Mitch Daniels was the Republican nominee and his electoral strength reversed all four of those outcomes. Do you think that, today, the gay marriage movement would be folding up shop? Probably not. Prior to last November, gay marriage advocates were 0-for-32 in elections. That never bothered them.

You advance arguments not because you think they are winning—or losing—propositions, but because you think the arguments are persuasive on their own merits.

***

The reason the same-sex marriage debate is going to continue, regardless of the Supreme Court’s decisions, is that its central tension is hidden beneath the superficial issue.

On its face, same-sex marriage appears to be an equal-protection question, which is why the prima facie arguments in favor of it are so powerful. But the real issues are much deeper and involve a conflict between competing ideas about freedom.

To many parts of the left, same-sex marriage isn’t just about “equality.” It’s about a bunch of other things, too. It’s a first step on the road to radically redefining marriage to include polygamy (and generally “weakening” the institution altogether)—the overall goal being to “transform the notion of family entirely.” This isn’t scaremongering, by the way. As Ryan Anderson helpfully demonstrates, gay-marriage advocates explicitlyadvance these ideas. There’s even more here. So please, do them the courtesy of taking them at their word.

Yet one gets the sense that, at root, the same-sex marriage project isn’t even really about opposition to the family as it is currently conceived—no matter how outmoded and bourgeois it may be. No, the family is just necessary collateral damage in the real struggle for sexual liberation. I suspect that, to the left, arguments about contraceptives, abortion, and gay marriage are really all about the same thing: the idea that sexual behavior must not be discriminated against, by anyone, in any sense. There must be no adverse outcomes; there must be no distinctions made; and any form of disapproval is tantamount to discrimination. Other freedoms—of speech, of liberty, of thought—may be, to some extent, negotiable. But for the left, sexual freedom is a paramount freedom.

The opponents of same-sex marriage, on the other hand, are just as deeply invested in a different freedom—religious freedom. Because they recognize that the same-sex marriage project is headed directly for conflict with religious organizations. Chai Feldblum is a thoughtful and honest proponent of same-sex marriage who serves on President Obama’s EEOC and was, before that, a professor at Georgetown Law School. Here’s Feldblum explaining the inevitable conflict between gay marriage and religious freedom to Maggie Gallagher a few years ago. This is long, but important:

“Gay rights supporters often try to present these laws as purely neutral and having no moral implications. But not all discrimination is bad,” Feldblum points out. In employment law, for instance, “we allow discrimination against people who sexually abuse children, and we don’t say ‘the only question is can they type’ even if they can type really quickly.”

To get to the point where the law prohibits discrimination, Feldblum says, “there have to be two things: one, a majority of the society believing the characteristic on which the person is being discriminated against is not morally problematic, and, two, enough of a sense of outrage to push past the normal American contract-based approach, where the government doesn’t tell you what you can do. There has to be enough outrage to bypass that basic default mode in America. Unlike some of my compatriots in the gay rights movement, I think we advance the cause of gay equality if we make clear there are moral assessments that underlie antidiscrimination laws.”

But there was a second reason Feldblum made time for this particular conference. She was raised an Orthodox Jew. She wanted to demonstrate respect for religious people and their concerns, to show that the gay community is not monolithic in this regard.

“It seemed to me the height of disingenuousness, absurdity, and indeed disrespect to tell someone it is okay to ‘be’ gay, but not necessarily okay to engage in gay sex. What do they think being gay means?” she writes in her Becket paper. “I have the same reaction to courts and legislatures that blithely assume a religious person can easily disengage her religious belief and self-identity from her religious practice and religious behavior. What do they think being religious means?”

To Feldblum the emerging conflicts between free exercise of religion and sexual liberty are real: “When we pass a law that says you may not discriminate on the basis of sexual orientation, we are burdening those who have an alternative moral assessment of gay men and lesbians.” Most of the time, the need to protect the dignity of gay people will justify burdening religious belief, she argues. But that does not make it right to pretend these burdens do not exist in the first place, or that the religious people the law is burdening don’t matter.

“You have to stop, think, and justify the burden each time,” says Feldblum. She pauses. “Respect doesn’t mean that the religious person should prevail in the right to discriminate—it just means demonstrating a respectful awareness of the religious position.”

Feldblum believes this sincerely and with passion, and clearly (as she reminds me) against the vast majority of opinion of her own community. And yet when push comes to shove, when religious liberty and sexual liberty conflict, she admits, “I’m having a hard time coming up with any case in which religious liberty should win.”

That—right there—is the core of the same-sex marriage debate. And it’s where we’re going to end up eventually, regardless of what the Supreme Court rules.